The Queen v Cai

[2006] NZCA 312

IN THE COURT OF APPEAL OF NEW ZEALAND

CA357/05

THE QUEEN

v

LEI CAI

Hearing:14 November 2006

Court:Chambers, Goddard and Gendall JJ

Counsel:R M Mansfield for Appellant

M A Corlett for Crown

Judgment:17 November 2006 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Importing cocaine

[1]       In 2004 Lei Cai and Abdalla Ali were arrested and charged following their involvement in the importation of cocaine, a class A controlled drug.  Eventually the police recovered in excess of 2.5 kilograms of cocaine, which had a potential street value in excess of $3.5 million.

[2]       Mr Ali pleaded guilty on day 2 of the joint trial to one charge of importing cocaine and one charge of possession of cocaine for the purposes of supply.  Mr Cai, however, continued to defend the charges he faced.  The jury found him guilty on all counts, one of importing cocaine and two counts of being in possession of cocaine for purposes of supply. 

[3]       Laurenson J, the trial judge, sentenced the two men at the same time.  He adopted a starting point for both of them of 15 years’ imprisonment.  In Mr Cai’s case, he considered there were no mitigating factors, so the starting point became the end point as well.  He imposed an order that Mr Cai serve a minimum period of imprisonment (MPI) of nine years.  The judge found some mitigating factors in Mr Ali’s case and sentenced him to an overall sentence of 14 years’ imprisonment, with an MPI of seven and a half years’ imprisonment.

[4]       Mr Cai originally appealed against both his conviction and his sentence.  Subsequently, however, he abandoned his appeal against conviction.  We are concerned only with the appropriateness of the sentence Laurenson J imposed.

Issues on the appeal

[5]       There is effectively only one issue on the appeal.  That is whether the judge was right in selecting a starting point of 15 years’ imprisonment.  Mr Mansfield, for Mr Cai, submits that that starting point was manifestly excessive, particularly in light of this court’s decision on an appeal against sentence brought by Mr Ali: R v Ali CA371/05 20 June 2006.  Mr Mansfield accepts that the judge was correct to find no mitigating circumstances. 

[6]       Mr Mansfield also accepts that the judge was entitled to impose an MPI and that an MPI of 60% was within appropriate judicial discretion.  Of course, Mr Mansfield submits that, if we accept his submission that the nominal sentence is manifestly excessive, then the MPI should be reduced proportionately.

The starting point

[7]       Laurenson J adopted the same starting point for both Mr Cai and Mr Ali.  He considered there were no mitigating factors in Mr Cai’s case.  In Mr Ali’s case, however, he allowed a one year reduction for his pleas of guilty, albeit “at a very late stage”, and his “absence of previous convictions”: R v Ali and Cai HC AK CRI 2004‑404-8211 6 September 2005 at [44]. 

[8]       As we have said, Mr Ali appealed.  His appeal was due to be heard at the same time as Mr Cai’s.  In the end, that did not happen because, at the time Mr Ali’s appeal was heard, Mr Cai was without representation.  This court decided to go ahead and hear Mr Ali’s appeal on its own, as “a number of his family and friends had travelled from Australia to be at court for the appeal”: Ali at [15].

[9]       In its judgment on Mr Ali’s appeal, this court held that the judge’s starting point was within the appropriate band of 13 to 16 years fixed in R v Wickremasinghe HC AK T013408 28 March 2003 at [25] and approved by the Court of Appeal in R v Davis CA440/04 20 October 2005: Ali at [21]-[23].The court noted that the judge could have adopted a lower starting point for Mr Ali compared with Mr Cai, given a Crown concession that Mr Ali may not have been involved at the same organisational level as Mr Cai and the judge’s own assessment that Mr Ali’s level of authority might have been less than Mr Cai’s: at [23]. This court considered that the trial judge had failed to give a big enough discount for mitigating factors. This court considered that Mr Ali’s guilty pleas, albeit late, were “a tangible recognition of Mr Ali’s acceptance of responsibility”: at [25]. They went some way, the court thought, to supporting his counsel’s submission “that Mr Ali was remorseful as recorded in the pre-sentence report”. This court also noted Mr Ali’s “lack of previous convictions”. The court considered that the judge had overlooked Mr Ali’s young age, a factor required to be taken into account by s 9(2)(a) of the Sentencing Act 2002: at [25]. At the time of the offending, Mr Ali was only 20.

[10]     This court substituted 12 years’ imprisonment for the judge’s 14 years.  It is not completely clear whether the court reached that figure by taking a starting point of 15 years’ imprisonment and allowing a 20% discount (three years) for the mitigating facts of guilty pleas, lack of previous convictions, and young age, or whether the court adopted a 14 year starting point with a 15% (two year) reduction for those mitigating factors.  The former seems likely given the absence of criticism of the judge’s starting point: the reference to the fact that the judge “could have adopted” a lower starting point in Mr Ali’s case does not mean this court was saying he “should have adopted” a lower starting point, still less that he was wrong not to have done so.

[11]     Mr Mansfield submitted that the starting point might have been even lower – say, 13 years.  He submitted that the guilty pleas would have been worth little, given their lateness.  He further submitted that Mr Ali’s lack of previous convictions could not have been worth much, given that, he submitted, personal factors such as a clean record count for little when being sentenced for serious drug offending.  And Mr Ali was not of such tender age as to justify much of a discount on the “age” ground in s 9(2)(a).  We are quite unable to accept that submission.  It is inconceivable that the court would have granted only a one year (7%) discount for those three factors in circumstances where the court was being critical of the one year discount allowed by the trial judge.  The present panel is confirmed in that view by the fact that one of its number was part of the panel which determined Ali, and he confirms that the Ali panel did not contemplate a 13 year starting point.

[12]     So this court’s starting point in Ali was either 15 years or 14 years.  If it was 15 years, then there can be no legitimate challenge to the sentence imposed on Mr Cai, as at the very least his offending was equally culpable to Mr Ali’s.

[13]     But what if this court’s starting point in Ali was in fact 14 years?  In that event, in fairness, should Mr Cai’s sentence be reduced to that level?

[14] Laurenson J found that Mr Cai “was primarily responsible for the running of the operation in New Zealand”: sentencing notes at [8]. He thought Mr Ali was “Mr Cai’s right hand man”. Overall, he considered that they were “both fully involved from the outset in the planning and implementation of this importing operation” and that in terms of criminal culpability arising from that involvement, there was “little to distinguish between” them: at [8].

[15]     Mr Mansfield submitted that the evidence did not justify the distinction between Mr Cai and Mr Ali.  We are satisfied, however, that the inference the judge drew was open to him.  The following facts were established on the evidence:

(a)The cocaine arrived in New Zealand in a large number of envelopes addressed to various post office boxes around Auckland.  At the time the drugs arrived, Mr Ali was in New Zealand, but Mr Cai was not.  The drugs were not uplifted until Mr Cai arrived in New Zealand.

(b)At a time when Mr Cai and Mr Ali were together in a vehicle being pursued by the police, it was from Mr Cai’s phone, not Mr Ali’s, that calls were made to and from Australia.  Australia was the headquarters of this drug smuggling operation. 

(c)On 8 March 2004, Mr Cai sent AUD3,000 to his girlfriend, who was at the time living at Kilimanjaro Drive at Botany Downs.  Kilimanjaro Drive was the local headquarters of this drug smuggling operation.  There is no evidence that Mr Ali had access to such large sums of money. 

(d)Another conspirator, Pleti Crichton, who turned Queen’s evidence, gave evidence of having communicated on numerous occasions with Mr Cai.

(e)It was Mr Ali who did a lot of the day to day organisation prior to the arrival of the drugs.  Mr Cai made a four day visit to New Zealand in February 2004, staying at the Kilimanjaro Drive house, but had then returned to Australia.  He did not return to New Zealand until 2 April 2004 when the drugs were ready to be uplifted.

(f)Mr Ali was only 20 at the time of the offending.  Mr Cai was older (24). 

[16]     Those facts, taken together, allow one to draw an inference that Mr Cai was senior to Mr Ali in the drug ring hierarchy.  The inference can be drawn that Mr Cai came to New Zealand to check on Mr Ali’s progress, then returning to Australia until his presence was again necessary for the uplifting of the drugs.  This was a substantial drug ring and it seems likely that those higher up the chain did not want to entrust the uplifting of the drugs to the youthful Mr Ali.  It does seem significant that calls to and from Australia when the balloon looked as though it was going to go up were made from Mr Cai’s phone, not Mr Ali’s.  We consider that the judge’s conclusion as to respective positions within the drug organisation was open to him.

[17]     We may add that the inference he drew would have been strengthened by information that became available to him on sentencing.  Mr Ali had no previous convictions, whereas Mr Cai had been a serious offender since his teens.  He had three drug-related convictions, together with convictions for robbery, kidnapping, being in possession of loaded firearms in a public place, and other serious offending. 

[18]     In these circumstances, even if this court’s starting point in Ali was 14 years, we do not consider that a 15 year starting point in the present case was manifestly excessive.

Conclusion

[19]     Mr Mansfield, despite his thoughtful submissions, has not persuaded us that the starting point or the sentence was manifestly excessive.  Nor has he persuaded us that a 15 year sentence for Mr Cai is out of line with the 12 year sentence ultimately determined as appropriate for Mr Ali. 

Solicitors:
Crown Law Office, Wellington